Page 16 D. Maimon - ClassAction.org...RESTAURANT, ANIL KUMAR and RENU KUMAR Case 1:17-cv-03704...

Case 1:17-cv-03704 Document 1 Filed 05/17/17 Page 1 of 16

D. Maimon KirschenbaumJOSEPH & KIRSCHENBAUM LLP32 Broadway, Suite 601New York, NY 10004

(212) 688-5640

(212) 688-2548 (fax)

Attorneysfor Named Plaintiff proposed FLSACollective Plaintiffs, andproposed Class

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

SAMUEL PRABIR, on behalf of himself and CASE NO.others similarly situated,

Plaintiff, COMPLAINT

Defendants.

Plaintiff, on behalf of himself and all others similarly situated, alleges as follows:

JURISDICTION AND VENUE

1. This Court has original federal question jurisdiction under 28 U.S.C. 1331

because this case is brought under the Fair Labor Standards Act, 29 U.S.C. 201, et seq.

("FLSA"). This Court has supplemental jurisdiction over the New York state law claims, as they

are so related to the claims in this action within the Court's original jurisdiction that they form

part of the same case or controversy under Article III of the United States Constitution.

V. FLSA COLLECTIVE ACTION ANDRULE 23 CLASS ACTION

BUKHARA INDIAN CUISINE, INC. d/b/aINDIGO INDIAN BISTRO, BASERA DEMAND FOR JURY TRIALINDIAN CUISINE, INC. d/b/a/ BASERARESTAURANT, ANIL KUMAR and RENUKUMAR


2. Venue is proper in this District because Defendants conduct business in this

District, and the acts and/or omissions giving rise to the claims herein alleged took place in this

District.

THE PARTIES

3. Defendant Bukhara Indian Cuisine, Inc. owns and operates Indian Indigo Bistro

located in Midtown East, Manhattan.

4. Defendant Basera Indian Cuisine, Inc. (together with Bukhara Indian Cuisine,

Inc., the "Restaurant Defendants") is a New York corporation that owns and operates Basera

restaurant (together with Indian Indigo Bistro, the "Restaurants") located at 43-22 Queens

Boulevard, Sulmyside, NY 11104.

5. Both Restaurants have an annual gross volume of sales in excess of $500,000.

6. The Restaurant Defendants are part of a single integrated enterprise that jointly

employed Plaintiff and those similarly situated at all relevant times. The Restaurant Defendants

are owned, and their operations are conducted, by Anil Kumar and Renu Kumar, and they are all

subject to the same general management and the payroll practices described herein.

7. Defendants Anil Kumar and Renu Kumar exercises sufficient control over the

Restaurants' day to day operations to be considered Plaintiff s employer under the FLSA and

New York law.

8. Defendant Anil Kumar is regularly present at Indigo.

9. Defendant Anil Kumar manages Indigo's financials.

10. Defendant Anil Kumar hires and fires employees at Indigo.

11. Defendant Anil Kumar disciplines employees at Indigo.

12. Defendant Renu Kumar is regularly present at Basera.

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13. Defendant Renu Kumar manages Basera's financials.

14. Defendant Renu Kumar hires and fires employees at Basera.

15. Defendant Renu Kumar disciplines employees at Basera.

16. Upon information and belief, Defendants Renu Kumar and Anil Kumar were

involved in creating the policies that are the subject of this lawsuit.

17. Plaintiff Samuel Prabir was employed by Defendants as a server from about April

2015 to April 2017.

FLSA COLLECTIVE ACTION ALLEGATIONS

18. Plaintiff brings the First and Second Claims for Relief as a collective action

pursuant to FLSA Section 16(b), 29 U.S.C. 216(b), on behalf of all service employees, other

than service managers, employed by Defendants at Basera Restaurant and/or Indigo Indian

Bistro on or after the date that is three years before the filing of the Original Complaint in this

case as defined herein ("FLSA Collective")

19. At all relevant times, Plaintiff and the other FLSA Collective Plaintiffs are and

have been similarly situated, have had substantially similar job requirements and pay provisions,

and are and have been subject to Defendants' decision, policy, plan and common policies,

programs, practices, procedures, protocols, routines, and rules willfully failing and refusing to

pay them at the legally required minimum wage for all hours worked and allowing non-tipped

employees to share in their tips. The claims of Plaintiff stated herein are essentially the same as

those of the other FLSA Collective Plaintiffs.

20. The First and Second Claims for Relief is properly brought under and maintained

as an opt-in collective action pursuant to 16(b) of the FLSA, 29 U.S.C. 216(b). The FLSA

Collective Plaintiffs are readily ascertainable. For purpose of notice and other purposes related

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to this action, their names and addresses are readily available from the Defendants. Notice can

be provided to the FLSA Collective Plaintiffs via first class mail to the last address known to

Defendants.

RULE 23 CLASS ALLEGATIONS NEW YORK

21. Plaintiff brings the state law Claims for Relief pursuant to the Federal Rules

of Civil Procedure ("F.R.C.P.") Rule 23, on behalf of all service employees, other than service

managers, employed by Defendants at Basera Restaurant or Indigo Indian Bistro on or after the

date that is six years before the filing of the Original Complaint in this case as defined herein (the

"Class Period")

22. All said persons, including Plaintiff, are referred to herein as the "Class." The

Class members are readily ascertainable. The number and identity of the Class members are

determinable from Defendants' records. The hours assigned and worked, the positions held, and

the rates of pay for each Class member are also determinable from Defendants' records. For

purposes of notice and other purposes related to this action, their names and addresses are readily

available from Defendants. Notice can be provided by means permissible under said F.R.C.P.

23.

23. The proposed Class is so numerous that joinder of all members is impracticable,

and the disposition of their claims as a class will benefit the parties and the court. Although the

precise number of such persons is unknown, and the facts on which the calculation of that

number are presently within the sole control of Defendants, upon information and belief, there

are more than forty (40) members of the Class.

24. Plaintiff's claims are typical of those claims which could be alleged by any

member of the Class, and the relief sought is typical of the relief which would be sought by each

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member of the Class in separate actions. All the Class members were subject to the same

corporate practices of Defendants, as alleged herein, of failing to pay minimum wage, overtime,

and spread of hours compensation; illegal retention of tips; and failing to give required wage

notices. Defendants' corporate-wide policies and practices affected all Class members similarly,

and Defendants benefited from the same type of unfair and/or wrongful acts as to each Class

member. Plaintiff and other Class members sustained similar losses, injuries and damages

arising from the same unlawful policies, practices and procedures.

25. Plaintiff is able to fairly and adequately protect the interests of the Class and has

no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced

and competent in both class action litigation and employment litigation and have previously

represented plaintiffs in wage and hour cases.

26. A class action is superior to other available methods for the fair and efficient

adjudication of the controversy particularly in the context of wage and hour litigation where

individual class members lack the financial resources to vigorously prosecute a lawsuit against

corporate Defendants. Class action treatment will permit a large number of similarly situated

persons to prosecute their common claims in a single forum simultaneously, efficiently, and

without the umtecessary duplication of efforts and expense that numerous individual actions

engender. Because the losses, injuries and damages suffered by each of the individual Class

members are small in the sense pertinent to a class action analysis, the expenses and burden of

individual litigation would make it extremely difficult or impossible for the individual Class

members to redress the wrongs done to them. On the other hand, important public interests will

be served by addressing the matter as a class action. The adjudication of individual litigation

claims would result in a great expenditure of Court and public resources; however, treating the

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claims as a class action would result in a significant saving of these costs. The prosecution of

separate actions by individual members of the Class would create a risk of inconsistent and/or

varying adjudications with respect to the individual members of the Class, establishing

incompatible standards of conduct for Defendants and resulting in the impairment of class

members' rights and the disposition of their interests through actions to which they were not

parties. The issues in this action can be decided by means of common, class-wide proof. In

addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently

manage this action as a class action.

27. Upon information and belief, Defendants and other employers throughout the

state violate the New York Labor Law. Current employees are often afraid to assert their rights

out of fear of direct or indirect retaliation. Former employees are fearful of bringing claims

because doing so can harm their employment, future employment, and future efforts to secure

employment. Class actions provide class members who are not named in the complaint a degree

of anonymity which allows for the vindication of their rights while eliminating or reducing these

risks.

28. There are questions of law and fact common to the Class which predominate over

any questions affecting only individual class members, including:

a) Whether Defendants employed Plaintiff and the Class members within the

meaning of the New York law.

b) At what common rate, or rates subject to common methods of calculation,

were and are Defendants required to pay Plaintiff and the Class members for their

work.

c) What are and were the policies, practices, programs, procedures, protocols

6


and plans of Defendants regarding the types of work and labor for which

Defendants did not pay the Plaintiff and the Class members at all.

d) Whether Defendants paid Plaintiff and the Class members the federal and

state minimum wage for all hours worked.

e) Whether Defendants paid Plaintiff and the Class Members New York's

"spread of hours" premium.

Whether Defendants illegally retained portions of Plaintiff s tips and the

Class members' tips.

g) Whether Defendants illegally distributed Plaintiff s and the Class

members' tips to Defendants' agents.

h) Whether Defendants gave Plaintiff proper statements as required by New

York Labor Law 195 and the New York Hospitality Wage Order.

FACTS

29. Plaintiff s consent to sue form is attached hereto as Exhibit A.

30. Defendants committed the following alleged acts knowingly, intentionally and

willfully.

31. Plaintiff was intermittently scheduled to work for weeks at a time at either

Restaurant, but his schedule and Defendants' methods of compensating him were the same at

both locations.

32. Throughout his employment, Plaintiff typically worked from 11:00 a.m. to 11:00,

five or six days per week.

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33. Plaintiff s official lunch break from 3:00 p.m. to 5:00 p.m., but Plaintiff was

required to pick up the restaurant's phones during that period. Therefore, he was not free to

leave the restaurant or use that "break" time as he wished.

34. Defendants did not pay Plaintiff an hourly wage at all.

35. Defendants did not distribute to Plaintiff the tips he earned as a server.

36. Instead Defendants paid Plaintiff random sums of money,ranging from $200 to

$600 per week, without any extra compensation.

37. The weekly amount Defendants paid Plaintiff often amounted to less than the

minimum wage.

38. Defendants did not pay 'Plaintiff any overtime premium for hours worked in

excess of 40 per workweek.

39. Defendants did not pay Plaintiff New York's spread of hours premium for days

that his workday lasted longer than 10 hours.

40. Defendants did not give Plaintiff proper wage statements each week as required

by New York Labor 195(3).

41. Defendants did not give Plaintiff any notice of his payrate as required by NYLL

195(1).

42. Defendants committed the foregoing acts against Plaintiff, the FLSA Collective

Plaintiffs, and the Class.

FIRST CLAIM FOR RELIEF

(FLSA Minimum Wage Claims, 29 U.S.C. 201, et seq.)(Brought by Plaintiff on Behalf of Himself and the FLSA Collective Plaintiffs)

43. Plaintiff, on behalf of himself and the FLSA Collective Plaintiffs, realleges and

incorporates by reference all preceding paragraphs as if they were set forth again herein.

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44. At all relevant times, Defendants have been, and continue to be, "employers"

engaged in interstate "commerce" and/or in the production of "goods" for "commerce, within

the meaning of FLSA, 29 U.S.C. 203. At all relevant times, Defendants have employed

"employee[s], including Plaintiff and each of the FLSA Collective Plaintiffs.

45. Throughout the statute of limitations period covered by these claims, Defendants

knowingly failed to pay Plaintiff the federal minimum wage for each hour worked.

46. Plaintiff, on behalf of himself and the FLSA Collective Plaintiffs, seeks damages

in the amount of their respective unpaid compensation, liquidated (double) damages as provided

by the FLSA for minimum wage violations, attorneys' fees and costs, pre- and post-judgment

interest, and such other legal and equitable relief as this Court deems just and proper.

SECOND CLAIM FOR RELIEF

(FLSA Overtime Violations, 29 U.S.C. 207)(Brought by Plaintiff on Behalf of Himself and the FLSA Collective Plaintiffs)

47. Plaintiff, on behalf of himself and the FLSA Collective Plaintiffs, realleges and


48. At all relevant times, Defendants have been, and continue to be, an "employer"

engaged in interstate "commerce" and/or in the production of "goods" for "commerce, within

the meaning of FLSA, 29 U.S.C. 203. At all relevant times, Defendants have employed,

"employee[s], including Plaintiff and each of the FLSA Collective Plaintiffs.

49. Throughout the statute of limitations period covered by these claims, Plaintiff and

the other FLSA Collective Plaintiffs often worked in excess of forty (40) hours per workweek

and continue to do so.

50. At all relevant times, Defendants operated under a decision, policy and plan, and

under common policies, programs, pfactices, procedures, protocols, routines and rules of

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willfully failing and refusing to pay the Class members at one-and-one-half times the minimum

wage for work in excess of forty (40) hours per workweek, and willfully failing to keep records

required by the FLSA even though the FLSA Collective Plaintiffs have been and are entitled to

overtime.

51. Plaintiff, on behalf of himself and the FLSA Collective Plaintiffs, seeks damages

in the amount of their respective unpaid overtime compensation, liquidated (double) damages as

provided by the FLSA for overtime violations, attorneys' fees and costs, pre- and post-judgment

interest, and such other legal and equitable relief as this Court deems just and proper.

THIRD CLAIM FOR RELIEF

(New York State Minimum Wage Act, New York Labor Law 650 et seq.)(Brought by Plaintiff bn Behalf of Himself and the Class)

52. Plaintiff, on behalf of himself and members of the Class, realleges and


53. Defendants knowingly paid the Plaintiff and members of the Class less than the

New York minimum wage as set forth in N.Y. Lab. Law 652 and supporting regulations of the

New York State Department of Labor.

54. Defendants did not pay Plaintiff and members of the Class the New York

minimum wage for all hours worked.

55. Defendants' failure to pay Plaintiff and members of the Class the minimum wage

was willful within the meaning ofN.Y. Lab. Law 663.

56. As a result of Defendants' willful and unlawful conduct, Plaintiff and members of

the Class are entitled to an award of damages, including liquidated damages, in amount to be

determined at trial, pre- and post-judgment interest, costs and attorneys' fees.

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FOURTH CLAIM FOR RELIEF

(New York Overtime Violations)(New York Minimum Wage Act, N.Y. Stat. 650 et seq.,

N.Y. Comp. Codes R. & Regs. Tit. 12, 146-1.4

(Brought by Plaintiff on Behalf of Himself and the Class)



58. It is unlawful under New York law for an employer to suffer or permit a non-

exempt employee to work without paying overtime wages for all hours worked in excess of forty

(40) hours in any workweek.

59. Throughout the Class period, Defendants willfully, regularly and repeatedly failed

to pay Plaintiff and members of the Class, at the required overtime rate of one-and-one-half times

the minimum wage for hours worked in excess of forty (40) hours per workweek.


the Class are entitled to an award of damages, including liquidated damages, in an amount to be

determined at trial, pre- and post-judgment interest, and costs and attorneys' fees.

FIFTH CLAIM FOR RELIEF

(New York Spread of Hours Provisions,N.Y. Lab. L. 650 et seq., and N.Y. Comp. Code R. &

Regs. tit. 12, 146-1.6)(Brought by Plaintiff on Behalf of Himself and the Class)



62. Plaintiff and members of the Class often had workdays that lasted more than ten

(10) hours.

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63. Defendants willfully and intentionally failed to compensate Plaintiff and members

of the Class one hour's pay at the basic New York minimum hourly wage rate when their

workdays exceeded ten (10) hours, as required by New York law.


the Class are entitled to an award of damages, including liquidated damages, in an amount to be

determined at trial, pre- and post-judgment interest, and costs and attorneys' fees663.

SIXTH CLAIM FOR RELIEF(Illegal Deductions from Gratuities, N.Y. Lab. L. 193, 196-d and 198-b)

(Brought by Plaintiff on Behalf of Himself and the Class)


incorporates by reference all previous paragraphs.

66. Defendants and their managers retained and continue to retain portions of

Plaintiff s tips and Class members' tips.


the Class are entitled to an award of damages, including liquidated damages, in amount to be

determined at trial, pre- and post-judgment interest, costs and attorneys' fees.

SEVENTH CLAIM FOR RELIEF(New York Notice Requirements, N.Y. Lab. L. 195, 198)(Brought by Plaintiff on Behalf of Himself and the Class)

68. Plaintiff, on behalf of himself and the members of the Class, realleges and


69. Defendants did not provide Plaintiff and the members of the Class with the

notices required by N.Y. Lab. Law 195.

70. As a result of Defendants' unlawful conduct, Plaintiff and members of the Class

are entitled to an award of damages pursuant to N.Y. Lab. Law 198, in amount to be

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determined at trial, pre- and post-judgment interest, costs and attorneys' fees, as provided by

N.Y. Lab. Law 663.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of himself, the FLSA Collective Plaintiffs, and

members of the Class, pray for relief as follows:

A. An award of damages, according to proof, including, back pay, front pay,

emotional distress damages, punitive damages, and liquidated damages, to be paid

by Defendants;

B. Designation of this action as a collective action on behalf of the FLSA Collective

Plaintiffs and prompt issuance of notice pursuant to 29 U.S.C. 216(b) to all

similarly situated members of the FLSA opt-in class, apprising them of the

pendency of this action, and petinitting them to assert timely FLSA claims and

state claims in this action by filing individual Consent to Sue forms pursuant to 29

U.S.C. 216(b);

C. Designation of Plaintiff as Representative of the FLSA Collective Plaintiffs;

D. Designation of this action as a class action pursuant to F.R.C.P. 23.

E. Designation of Plaintiff as Representative of the Class.

F. An award of damages, according to proof, including liquidated damages, to be

paid by Defendants;

G. Penalties available under applicable laws;

H. Costs of action incurred herein, including expert fees;

I. Attorneys' fees, including fees pursuant to 29 U.S.C. 216, N.Y. Lab. L. 663

and other applicable statutes;

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J. Pre-judgment and post-judgment interest, as provided by law; and

K. Such other and further legal and equitable relief as this Court deems necessary,

just and proper.

Dated: New York, New York Respectfully submitted,May 16, 2017

JOSEPH & KIRSCHENBAUM LLP

Kirschenbaum32 Broadway, Suite 601New York, NY 10004Tel: (212) 688-5640Fax: (212) 688-2548

Attorneysfor Named Plaintiff proposedFLSA Collective Plaintiffs, andproposedClass

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial on all causes of action and claims with respect to

which he has a right to jury trial.

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EXHIBIT A


CONSENT TO SUE UNDERFEDERAL FAIR LABOR STANDARDS ACT

I am an employee currently or formerly employed by Basera Restaurant andIndigo Restaurant and/or related entities. I consent to be a plaintiff in an action tocollect unpaid wages. I agree that I am bound by the terms of the Professional ServicesAgreement signed by the named plaintiffs in this case.

PR-Pcib. (g vSif- Nu FFull Legal Name (Print)

IIQsfSignature

Date

ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: NYC Indian Restaurants, Owners Facing Wage and Hour Lawsuit

https://www.classaction.org/news/nyc-indian-restaurants-owners-facing-wage-and-hour-lawsuit

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